Miss FAUZIA IQBAL vs FARHAT JAHAN and others

ORDER

' SHAH KHAWAR, J.---The instant writ petition has been preferred against the concurrent findings of facts arrived at by the learned Addl. District Judge, Rawalpindi, and the learned Judge Guardian Court, Rawalpindi whereby the learned Addl. District Judge, Rawalpindi vide judgment and, decree dated 4-11-2013 ordered the restoration of custody of the minor in favour of respondent No, 1.

2. Brief facts of the case are that respondents Nos.1 and 2 Mst. Farhat Jahan and Mr. Sikandar Iqbal are the parents of the minor namely Hira Iqbal, who according to the version of the present petitioner was handed over to her by respondents Nos.1 and 2 when the minor was 5 days old. It is pertinent to mention here that the present petitioner Miss Fauzia Iqbal is the real paternal aunt (Phophi) of the minor. The case of the petitioner is that the minor Hira Iqbal was the third daughter of respondents Nos.1 and 2 and they were not in a position to properly up-bring and raise the minor. On the intervention of the paternal grandfather of the minor and real father of the petitioner and respondent No,2 ,the minor, who was 5 days old, was voluntarily given in the care and custody of the petitioner and thus, the petitioner adopted the minor. Although, it is the version of respondent No,1 Mst. Farhat Jahan mother of the minor that she had not consented such transfer of custody of the minor but had to accept the same due to the obedience and honour of her father-in-law.

3.The minor Hira Iqbal is almost 12 years of age and admittedly is in the care and custody of the petitioner.

4.Respondent No,2 Mst. Farhat Jahan filed an application under section 25 of the Guardians and Wards Act, 1890 against the present petitioner before the learned Judge Guardian Court, Rawalpindi for the custody of her daughter minor Hira Iqbal by contending that being mother of the minor she has superior right to have custody of the minor. Further contended that the minor is growing/tender age and needs special attendance to be a good human being but the present petitioner is denying access of the minor to her.

5.Conversely, the present petitioner also filed an application under section 7 read with section 17 of the Guardians and Wards Act, 1890 for appointment of guardian in respect of the minor Hira Iqbal.

Both the suits were consolidated by the learned Guardian Court at Rawalpindi who passed his judgment and decree dated 8-5-2013 whereby the application under section 7 read with section 17 of the Guardians and. Wards Act, 1890 for her appointment as guardian to the person of minor was dismissed and the application under section 25 of the Act, filed by respondent No,1 Mst. Farhat Jahan was allowed and the present petitioner was directed to hand over the minor to respondents Nos.1 and 2 within 30 days of that order. An appeal under Section 14 of the Family Courts Act, 1964 was preferred by the present petitioner before the learned District Judge, Rawalpindi which was entrusted to the learned Additional District Judge who vide impugned judgment dated 4-11-2013 upheld the decision of the learned Judge Guardian Court and dismissed the appeal of the present petitioner. Hence, the instant writ petition.

6.I have gone through the entire record of the case and heard arguments advanced by the learned counsel for the parties.

7. One of the important aspects of the matter has not been considered by both the learned courts below i,e, the preference of the minor. This Court vide order dated 7-8-2014 made directions that the minor be allowed to accompany respondents Nos.1 and 2, parents for a whole day. The petitioner while obeying the order of this Court sent minor to her parents, brothers and sister and she spent almost 1-1/2 day with them. Today i,e, 12-8-2014 when the case was fixed for final arguments the minor was asked to place her preference. The minor, who is about 12 years of age, is intelligent enough and capable of performing intelligent preference. She stated before the Court that during her stay with the parents, brothers and sister she had pleasant feelings and stated that rather she will be happy in frequently visiting parents and her brother and sisters but will prefer to live with the petitioner Miss Fauzia Iqbal. The minor further stated that she is accustomed of the company of her Phophi who is properly taking care of her and she has developed love and affection for the petitioner. On this the elder sister of the minor pointed out that the educational results of the minor are not up to the mark and she is not being properly looked after by the petitioner. Whereupon, the minor very confidently stated that she gets disturbed when she is dragged in the courts due to litigation inter se the parties and finally concluded that she will prefer to remain under the custody and care of her Phophi, the petitioner.

8. This is not the case of ordinary impression. The instant case has its own facts and merits. It is admitted fact that the minor is in the custody of the petitioner ever since, she was 5 days old. Prima facie it seems that the minor was handed over to the petitioner by respondents Nos.1 and 2 with their own free will. It is also admitted that the petitioner and his family members are not strangers to the minor as the petitioner is living with her father and brother who are also father and brother of respondent No,2. It reflects that this arrangement continued till 2011 when some differences arose between the parties resulting into divergent litigation inter se the parties for the guardianship and custody of the minor. Admittedly, respondent No,1 filed application for restoration of custody of the minor on 29-10-2011 at a belated stage as at the relevant time, the minor had accustomed to the atmosphere provided by the petitioner and naturally minor had developed love and affection for the petitioner. Even otherwise, it is settled that claim of custody of the minor needs prompt recourse to the legal remedies, which is lacking in case of the respondent No,

1. Reference could be made of judgment reported in Mst. Shaheen Bibi (Nusrat Shaheen) v. Zulfiqar Ali Shah Kazmi and 2 others [(1995 CLC 306 (Lahore)].

9.Rather both the learned Courts below have recorded concurrent findings of facts which normally are not interfered but keeping in view the peculiar circumstances of the instant case the same are liable to be interfered with.

10. The minor herself appeared before this Court and was allowed to meet with respondents Nos.1 and 2 brother and sisters. She spent almost 1-1/2 day with them and finally made an intelligent preference of living with the petitioner. She also volunteered that she will be frequently visiting respondents Nos.1 and 2, brother and sisters but maintained that she may not be disturbed by way of abandoning her Phophi, the petitioner. This aspect of the matter has not been taken into account by both the learned Courts below. It is an admitted principle of law that in matters of the custody over all welfare of the minor is to be taken into account. The instant writ petition is allowed with the following observations and directions:--

(i) Both the parties shall establish cordial relations with each other and will jointly endeavour to up bring the minor.

(ii)Respondents Nos.1 and 2 shall be at liberty to visit the minor at petitioner's place and the petitioner will not deny access of the minor to them. The minor shall spend half of the vacation, whenever occur, with both the parties.

(iii)The petitioner shall send the minor at the residence of respondents Nos.1 and 2 on week-end, fortnightly and shall not estrange the minor against her parents.

(iv)When the minor reaches the age of marriage her relations for marriage will be decided mutually by the parties with the consent of the minor.